IN THE MATTER OF SARA SCHENIRER Docket No. 94-49-ST
TEACHERS SEMINARY, Docket No. 94-87-ST
Respondent. Assistance Proceeding
Howard D. Sorensen, Esq.
, Office of the General Counsel,
for the Office of Student Financial Assistance Programs, United States Department of
Before: Judge Richard F. O'Hair
On February 10, 1994, the Office of Student Financial Assistance
Programs (SFAP) of
the U.S. Department of Education (Department) issued a notice of intent to terminate the
eligibility of Sara Schenirer Teachers Seminary (SSTS) to participate in the student financial
assistance programs authorized under Title IV of the Higher Education Act of 1965, as amended
(HEA). 20 U.S.C. § 1070 et seq. and 42 U.S.C. § 2751 et seq. This
termination notification followed an emergency action which was initiated by the Department
against SSTS on January
13, 1994, and which, following a hearing, was set aside on March 25, 1994. On April 26, 1994,
SFAP initiated a similar notice of intent to terminate the eligibility of SSTS as to its Immigrant
Culture Program to participate in student financial assistance programs. An emergency action
was imposed against this particular program on March 29, 1994, and it remains in effect. SSTS
appealed both termination proceedings and they were assigned to this tribunal. At the request of
the parties, these two proceedings were joined at this level and thereafter have been treated as
one proceeding, although the two programs offered by SSTS, a teacher training program (Judaic
Studies) and an Immigrant Culture Program, will be addressed independently herein.
These termination proceedings are based on the alleged failure of SSTS to satisfy the relevant statutory and regulatory definitions of an eligible institution under the HEA. In order for the institution to meet the definition of either an institution of higher education or a postsecondary vocational institution, it must satisfy two criteria. First, the institution must be accredited by a nationally recognized accrediting agency or association which is also recognized by the Secretary of Education (Secretary). The second element of this definition depends on the
type of institution. An institution of higher education must offer at least one program which
either: 1) leads to an associate, baccalaureate, graduate, or professional degree; 2) is at least a
two-year program that is acceptable for full credit toward a bachelor's degree; or, 3) is at least a
one-year training program leading to a certificate or degree that prepares students for gainful
employment in a recognized occupation.See footnote 1
A post-secondary vocational institution, on the other hand, must offer at least a six-month
training program leading to a certificate or degree that
prepares students for gainful employment in a recognized occupation.See footnote 2
The Department maintains that SSTS does not satisfy any of these
because SSTS is not properly accredited and neither of its two programs leads 1) to an associate,
baccalaureate, graduate, or professional degree; 2) is a two year program that is acceptable for
full credit toward a bachelor's degree; or, 3) prepares students for gainful employment in a
recognized occupation. SSTS disagrees on all counts by averring that it maintains accreditation
with the Accrediting Commission for Continuing Education and Training (ACCET), a nationally
recognized accrediting association, and that both of its programs, its teacher training program
and its Immigrant Culture Program, prepare students for gainful employment in a recognized
The Department initially argued that accreditation as an avocational institution does not satisfy the statute or the regulations. Subsequently, on June 2, 1995, the Department provided
this tribunal with a copy of a February 9, 1995, letter from the Secretary to ACCET which
informed the latter that the Secretary "re-recognized" ACCET as an accrediting agency for an
additional three year period. The letter explained that this recognition
limits ACCET's scope of recognition to its accreditation of
"vocational" programs in the institutions of higher education it accredits.
Consequently, if an educational institution provides only non-collegiate
continuing education "avocational" programs and is accredited solely by ACCET,
it does not qualify as an eligible institution of higher education under the HEA.
In the Department's view, with which I agree, this correspondence
eliminates any doubt
that any ACCET accreditation of an institution as avocational after February 9, 1995, will not
satisfy the first prong of the definition of a Title IV eligible institution. The unanswered
question, however, is how this new qualified recognition of ACCET accreditation affects an
institution which has a pre-February 9 accreditation from ACCET. SSTS's position on this
issue, and one which I adopt, is that the Secretary's February 9 recognition is an after-the-fact
limitation on future accreditations and, therefore, has no bearing on SSTS's current
accreditation. Clearly, any future accreditation will be limited by this correspondence, but it
would appear that SSTS's current accreditation is valid until such time as it expires.
In SSTS's brief, which was submitted long before the Secretary's limited recognition of ACCET as an accrediting agency, SSTS proposes several theories to explain why it was properly accredited. Its first line of defense is that it should be the beneficiary of a safe harbor doctrine which stems from the fact that it has maintained Title IV eligibility since 1974.See footnote 3 3 During these many years of eligibility, SSTS and its programs have undergone scrutiny by the Department on numerous occasions. SSTS argues that because its eligibility was never questioned until October 1993See footnote 4 4 , the Department should be estopped from terminating its eligibility at this point in time. I agree with the Department that this theory cannot be applied here because the Department should never be placed in a position where it would be precluded from enforcing its regulations, even though there may have been a previous lapse in such enforcement. See In the Matter of Academia La Danza Artes del Hogar, Docket No. 90-31-SP, U.S. Dep't of Educ. (May 19, 1992), aff'd by the Secretary (Aug. 20, 1992). In that case the tribunal ruled that the Department was entitled to repayment of Title IV funds from the school
even though it was the Department that was grossly negligent in erroneously determining that the
school was an eligible institution. See also In the Matter of Molloy College, Docket No.
94-63- SP, U.S. Dep't of Educ. (March 1, 1995).
SSTS's second defense is that the Department's application of the
institutional eligibility with regard to schools classified as "avocational" violates the mandate of
the General Education Provisions Act, 20 U.S.C. § 1232, which prescribes rulemaking
procedures for the implementation of new federal regulations. I find this argument to be without
merit as I do not view the Department's position in this proceeding to constitute a changing or a
rewriting of its regulations or statutes, either of which would necessitate the initiation of the
notice and comment procedures.
Thirdly, SSTS argues that ACCET's award of the avocational accreditation status to an institution, such as it, that maintains a Judaic studies program satisfies the HEA and the regulations which mandate that an eligible institution must be accredited by a nationally recognized accrediting agency or association. In a number of similar proceedingsSee footnote 5 5 this tribunal has held that ACCET's only obligation as an accrediting organization is to assess the quality of the educational programs at the various educational institutions it serves; it is without authority to make the Title IV eligibility decisions which the Department is attempting to impose on it. Those decisions document that ACCET's internal development of an avocational/vocational sub- category to assist it in the performance of its evaluation function should not be a concern of the Department in its determination of an institution's eligibility for participation in Title IV funding. In this regard, these decisions have emphasized that the only finding by ACCET which is relevant to the Department's role is the issue of whether or not the institution has been accredited as a noncollegiate continuing education institution. Whatever subcategories exist within ACCET's evaluation process should not concern us. For all accreditations issued prior to February 9, 1995, the Department should not be relying on an ACCET determination as to whether an institution maintains programs for either personal or professional development. ACCET is basically not concerned about such a categorization; it will evaluate the institution's programs and, if the institution satisfies ACCET's criteria, it will award accreditation regardless of whether the institution is categorized as avocational or vocational. Therefore, I specifically reject the Department's position that ACCET's accreditation of SSTS has no nexus with the offering of any HEA-eligible programs. I find that ACCET's pre-February 9, 1995 accreditation of SSTS satisfies that prong of the definition of an eligible institution which requires that it be
accredited by a nationally recognized accrediting agency and that this accreditation continues
until it expires, at which time SSTS can submit a request for renewal. If it seeks and/or obtains
accreditation as an avocational institution, it would then be unable to satisfy the statutory
definition of an eligible institution.
On the other hand, I must agree with the Department that the
Immigrant Culture Program
does not satisfy the test. This program primarily provides its students with a concentrated
education of the laws governing the personal lifestyle of a practicing Orthodox Jew. These laws
are generations old and may be quite foreign to those persons who were not raised in this
lifestyle. For this reason, I do not doubt that it may take countless hours of instruction to impart
all of this knowledge to the uninformed. Additionally, it is uncontested that these many
requirements and restrictions on one's lifestyle would be a prerequisite for someone to gain
employment in either the homes or commercial establishments located in an Orthodox Jewish
community. However, I am not convinced that any of the training which is provided by the
Immigrant Culture Program, in and of itself, specifically trains a student for employment in a
recognized occupation. It only trains its students to be familiar with Judaic law. Once that
knowledge is gained, then the students are expected to apply their past experiences to performing
jobs similar to those referenced in SSTS's brief: kosher domestic cook, home attendant, child
care provider, companion, and housekeeper. I find that SSTS's instruction only incidentally
prepares its students for these occupations and enhances their employability. See Academy
for Jewish Education, supra note 5. This is insufficient to satisfy the regulatory definition of
an eligible institution.
In conclusion, I find that SSTS meets the statutory requirement that it be accredited by a recognized accrediting agency or commission, at least through its current period of accreditation by ACCET. When this current period expires, its future status will be dependent upon its ability to convince ACCET that it is a vocational institution. Secondly, I find that SSTS offers at least one program, its teacher training program, which trains its students for employment in a
recognized occupation. Accordingly, SSTS satisfies the statutory requirements as currently
written to qualify as either an institution of higher education or a postsecondary vocational
2. SSTS's teacher training program provides a program of training
that prepares students
for gainful employment in a recognized occupation.
3. SSTS's Immigrant Culture Program does not provide a program
of training that
prepares students for gainful employment in a recognized occupation.
Judge Richard F. O'Hair
Issued: June 21, 1995
S E R V I C E
A copy of the attached initial decision was sent by CERTIFIED MAIL, RETURN RECEIPT
REQUESTED to the following:
Yolanda Gallegos, Esq.
Dow, Lohnes & Albertson
1255 23rd Street, N.W.
Washington, D.C. 20037
Howard D. Sorensen, Esq.
Office of the General Counsel
U.S. Department of Education
600 Independence Avenue, S.W.
Washington, D.C. 20202-2110